Allahabad High Court
Suresh vs State Of U.P. on 22 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 1337
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 28.03.2019 Judgment delivered on 22.5.2019 Court No. - 1 Case :- CRIMINAL APPEAL No. - 2408 of 1983 Appellant :- Suresh Respondent :- State Of U.P. Counsel for Appellant :- J.S.Kashyap,S.Chatharji,S.D.N.Singh,S.Hasnain Counsel for Respondent :- D.G.A. (Connected with) Case :- CRIMINAL APPEAL No. - 2315 of 1983 Appellant :- Menhdipal And Another Respondent :- State Counsel for Appellant :- S.B. Verma Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)
1. Heard Sri S.D.Yadav holding brief of Sri J.S.Kashyap, learned counsel for the appellant and Sri Jai Narain, learned AGA for the State.
2. Criminal Appeal No. 2408 of 1983 has been preferred by accused-appellant Suresh S/o Kallu against judgment and order dated 12.9.1983 passed by Vth Additional Sessions Judge, Mainpuri in S.T. No. 551 of 1983 in which he has been convicted under Sections 147, 302/149 and 404/149 IPC and sentenced to undergo rigorous imprisonment for a period of one year under Section 147 IPC; one year under Section 404 read with Section 149 IPC; and with imprisonment for life under Section 302/149 IPC and all the sentences are directed to run concurrently.
3. The other Criminal Appeal No. 2315 1983 has been preferred by accused-appellant Menhdipal S/o Bhimsen and Raj Pal S/o Tikam Singh against the same Session Trial, whereby both of them have been convicted under Section 148, 404 read with Section 149 IPC and 302 read with 149 IPC and sentenced to undergo rigorous imprisonment for one year each under Section 148 IPC; rigorous imprisonment for one year each under Section 404 read with Section 149 IPC; life imprisonment each under Section 302/149 IPC and all the sentences are directed to run concurrently.
4. Since both these appeals arise out of the same Session Trial No. 551 of 1983, they are being taken up together for the sake of convenience.
5. In brief, the prosecution case as disclosed from the F.I.R. is that the informant Phool Singh (PW-1) gave written report (Ext. Ka-1) at P.S. Fariha, Sub-district Jasrana, District Mainpuri on 8.8.1982 at 6:15 am with the allegations that on 7.8.1982 at about 10:00 pm, he was smoking Bidi sitting on a cot and his wife Surajmookhi was making curd sitting near his cot. The lantern was burning in Chhappar and his daughter Kusuma (deceased) was sleeping on the cot and in front of his house, Mahavir Singh (deceased) and Bhoore Singh (PW-3) were sleeping on Chabutra. Near Mahavir Singh on adjacent cot, Bhoomi Sri and his mother Ganga Sri (deceased) were also sleeping on a cot. In the Chhappar of Mahavir Singh and Bhoore Singh also, lantern was burning. In the meantime, at about 10:30 pm, 10 to 12 persons armed with guns and country made pistols, which included Amrit Singh (A-1) armed with gun of his father, Menhdipal (A-2) armed with Pauna (small country made gun), Bare Lal (A-4), who is son-in-law of Amrit Singh, R/o P.S. Eka, armed with Pauna, Raj Pal (A-3), who is brother-in-law of Menhdipal R/o village Jhapara, P.S. Jasrana, armed with gun, Suresh Yadav (A-5) R/o Pilakhtar Fateh, Khurshid Khan (A-7), Nasuruddin (A-6), both S/o Gaphoor Khan, R/o Barthara and 4-5 other men armed with country made pistols and guns, whose names he did not know but could recognize them if they come in front of him, all came from the side of the house of Amrit Singh and Menhdipal and Amrit Singh exhorted that hear was Phool Singh, let him be caught, at this Phool Singh (informant) fled from there raising alarm that Amrit Singh and his brother Mehndipal had made fire upon his daughter Kusuma and Bare Lal, Raj Pal Singh, Nasuruddin, Khurshid Khan and Suresh made fire upon Mahavir and his mother Ganga Sri, who after hearing the sound of fire, tried to flee from there but they were shot dead near their wall. On the alarm being raised by him and his wife and also hearing the sounds of F.I.R., many villagers reached there raising alarm and then, seeing that lot of villagers had come, all the miscreants fled towards north. They all (informant and his companions) chased miscreants but could not be caught. Informant, his wife Surajmukhi, Bhoore Singh, Bhoomi Sri, Somwati and many other villagers had identified all the miscreants in the light of burning lantern as well as bright light of moon. There was animosity going on between informant and Amrit Singh pertaining to land and giving the evidence. There was also animosity between Amrit Singh and Munni Lal on the one hand and Mahavir and Bhoore Singh on the other pertaining to partition and because of this animosity Amrit Singh and others had murdered his daughter, his Bhabhi (sister-in-law) and nephew. He prayed that after lodging the F.I.R. the necessary action be taken. It was further mentioned that the miscreants had taken away watch of Mahavir and "Pongni" of his mother.
6. On the basis of written report (Ext. Ka-1), case crime no. 48 of 1982 was registered at P.S. Fariha against seven named accused i.e. Amrit Singh, Menhdipal, Bare Lal, Suresh Yadav, Nasuruddin and Khurshid Khan and 4-5 unknown persons under Section 147, 148, 149, 302 and 404 IPC and chik F.I.R. (Ext. Ka-31) is prepared and entry of this was made in G.D. at report no. 9, time 6:15 am, dated 8.8.1982, which is Ext. Ka-32.
7. The investigation of the case was entrusted to S.I. Sri K.P. Singh (PW-5), who recorded statement of informant Phool Singh on 8.8.1982 at P.S. and after going to the spot told S.I. Kadam Singh, who prepared inquest report, who accordingly prepared inquest reports of the deceased Kusuma, Mahavir and Ganga Sri which are Ext. Ka 5, Ka-6 and Ka-7 respectively. The other necessary documents along with inquest report of Mahavir i.e. Challan Lash, Photo Lash, report C.M.O. and report R.I. were also prepared by S.I. Kadam Singh in his hand writing which were also signed by PW-5 and which are Exts. Ka-8, Ka-9, Ka-10 and Ka-11 respectively. The relevant documents pertaining to the dead body of deceased Kusuma i.e. Challan Lash, Photo Lash, report to C.M.O. report to R.I. were also prepared by S.I. Kadam Singh in his hand writing which were also signed by PW-5 and they are Exts. Ka-12 to Ka-16 respectively. The necessary papers relating to dead body of Ganga Sri i.e. Challan Lash, Photo Lash, report C.M.O., report to R.I. were also prepared by S.I. Kadam Singh and were also signed by PW-5, which are Exts. Ka-16 to Ext. Ka-19 respectively.
8. PW-5 inspected the place of incident and prepared its site plan in his hand writing which is Ext. Ka-2. The informant had showed him lantern which was taken by him in his possession and made its Fard recovery in his hand writing, which is Ext. Ka-21. The cot upon which the deceased Kushma was lying, bedding (dari) of the same, was blood stained, the same was taken in possession by him and its Fard recovery was prepared which is Ext Ka-22. At the place of incident, there was blood lying. Some blood was lying where Kusuma was lying dead. Some blood stained and ordinary soil were collected from there and kept in two separate containers which were sealed there on the spot and its recovery memo was prepared by him which is Ext. Ka-23. The place where Kushma was lying dead, near that place, two blank cartridges of 12 bore was found lying which were taken in possession and recovery memo of the same was prepared by him in his hand writing which is Ext. Ka-24. The place where deceased Mahavir Singh was lying, plain and blood stained soil were collected from there in two separate containers and its recovery memo was prepared by him which is Ext. Ka-25. The place where Ganga Sri was lying dead, the blood stained and ordinary soil were collected by him in two separate containers and recovery memo of the same was prepared by him which is Ext. Ka-26. Near the place where Ganga Sri was lying, three blank cartridges were found lying which were taken in police custody and its recovery memo was prepared, which is Ext. Ka-27. Bhoomi Sri had a lantern, in the light of which, miscreants are stated to have seen by her and the said lantern was taken by PW-5 in possession and its recovery memo was prepared by him which is Ext. Ka-28. Witness Bhoore Singh (PW-2) had stated to have seen the miscreants in the light of one lantern which was shown by him and the same was taken in possession and its recovery memo was prepared by him which is Ext. Ka-29. He also recorded statements of witness Bhoore Singh (PW-2) and Bhoomi Sri. All the three dead bodies were sealed by S.I. Kadam Singh and were sent along with necessary documents to S.N.M. Hospital, Firozabad, through Constable Khacher Singh, Rajveer Sharma and Biru Singh. Thereafter, PW-5 made raid at the house of Nasuruddin and Khurshid Khan at Barthara but they could not be found and, thereafter, raid was made in village Pilakhtar Fateh at the house of accused Suresh, he could not be found. Thereafter, PW-5 came to the P.S. and deposited all the case property in sealed condition. On 9.8.1982, he again made raids at the houses of Nasuruddin and Khurshid Khan in village Barthara but again they could not be found nor accused Suresh could be found at whose house in Pilakhtar Fateh, raid was conducted. Thereafter taking along S.I. Tej Prakash Sharma of P.S. Aedha, raid was conducted at the house of accused Bare Lal in village Salota but he could not be found. Thereafter taking along S.I. Har Prasad Sharma, from P.S. Jasrana, a raid was conducted at the house of Raj Pal Singh but he could not be found. Thereafter, PW-5 came to village Nagla Dan Sahay, recorded statements of Somwati and returned to P.S. On 10.8.1982, he again conducted raid at village- Barthara at the houses of Nasuruddin and Khurshid Khan but they could not be found nor Suresh could be found in his house nor accused Bare Lal could be found in village Salota. When raid was made again in the house of accused Raj Pal, he could not be found in village- Jhapara. On 11.8.1982, 12.8.1982, and 13.8.1982, search was made for accused persons who could not be found. On 13.8.1982, statements of witnesses of inquest report were recorded. On 14.8.1982, accused Nasuruddin surrendered before court. On 20.8.1982, he recorded statements of accused Nasuruddin Singh and Raj Pal inside jail. On 29.8.1982, he recorded statements of Smt. Surajmukhi and Kr. Rama etc. and on the same day he submitted charge sheet against Menhdipal, Raj Pal, Bare Lal, Nasuruddin and Suresh and in abscondance against Amrit Singh and Khurshid Khan which is Ext. Ka-30. PW-5 has also proved by way of secondary evidence, Chik F.I.R. which is Ext. Ka-31, which he deposed to have been written by Head Mohrrir, Shankar Singh, in his hand writing with which he was conversant and also proved entry of the said case in G.D. by the same Head Mohrrir, which is Ext. Ka-32. PW-5 has proved the blood stained and ordinary soil collected from the place where Kusuma was found dead which was material Ext. 1 and material Ext. 2; proved blood stained and ordinary soil pertaining to Mahavir which is material Ext. 3 and 4; proved blood stained and ordinary soil pertaining to Ganga Sri which is material Ext. 5-6 . He also proved two blank cartridges which were recovered from near the place where dead body of Kusuma was lying which is material Ext. 7 and 8 and also proved three blank cartridges which were recovered near the dead body of Ganga Sri, which are material Exts. 9, 10 and 11. The clothes which were separately sealed of deceased Kushma, Mahavir and Ganga Sri by the doctor in three separate bundles, were also marked as material Exts. 12, 13 and 14 respectively. Certain pallets were extracted by the doctor during post-mortem of the dead body of Kusuma and Mahavir, which was sealed in separate envelopes, which are material Exts. 15 and 16 respectively. The bedding (dari) upon which Kusuma was lying, was also marked as material Ext. 17.
9. After collecting sufficient evidence on record, the charge sheet was submitted against all the accused and on 1.1.1983 charge was framed against five accused namely, Menhdipal, Raj Pal, Bare Lal, Nasuruddin and Suresh in following manner.
10. Against accused- Suresh and Nasuruddin, charge was framed under Section 147 IPC; against Menhdipal, Raj Pal and Bare Lal along with 8-9 other under Section 148 IPC, against all the above named accused along with seven others under Section 302 read with 149 IPC; against all the above named five accused along with seven others under Section 404/149IPC; against Menhdipal under Section 302 IPC; against Raj Pal, Barelal, Nasuruddin and Suresh under Section 302 IPC, to which they pleaded not guilty and claimed to be tried on 1.1.1983.
11. In order to prove its case, from the side of prosecution statements of witnesses, Phool Singh (father of the deceased Kushma) as PW-1, Bhoore Singh as PW-2, Dr. Vinay Kumar Yadav, who conducted post mortem of the deceased as PW-3, Smt. Surajmukhi, wife of the informant as PW-4 and Investigating Officer Sri K.P. Singh as PW-5, were recorded.
12. Thereafter the prosecution evidence was closed and the statements of accused were recorded under Section 313 Cr.P.C.
13. The accused-appellants namely Menhdipal, Raj Pal and Suresh Yadav have stated the entire prosecution evidence to be false and pleaded that they have been falsely implicated due to enmity.
14. The appellant Raj Pal in particular has stated that because of there being land dispute between Phool Singh (PW-1) and Menhdipal (accused-appellant), he has been falsely implicated.
15. The accused- Suresh has also, in particular, has stated that the sister of Phool Singh (informant) was earlier married to Mulayam Singh of his village. Mulayam Singh had received injury in his leg, thereafter, she (sister of Phool Singh) started living with his Bhanja, Surendra Pradhan having taken away jewellery with her and when a panchayat was held in respect of return of the jewellery to Mulayam Singh, pursuant to that the same was returned, since then, Surendra Singh started having enmity with him and because of that he has been falsely implicated.
16. In defense, two witnesses have also been examined namely, Mulayam Singh S/o Kallu Singh as DW-1 and R.S. Pal, Professor of Mathmetics, Narayan College Shikohabad, District Mainpuri as DW-2.
17. After considering the entire evidence on record and having heard both the sides, the trial court has convicted and sentenced the appellants Menhdipal, Raj Pal and Suresh while other accused Bare Singh and Nasuruddin have been acquitted.
18. The main argument made by the learned counsel for the appellant is that according to F.I.R., PW-1 Phool Singh had run away from the place of incident as was mentioned by him in the F.I.R. itself which makes it evident that he was not an eyewitness of the occurrence and, therefore, his presence on the scene of occurrence is doubtful. His testimony ought to be dis-believed. It was further argued that the presence of PW-1 should be treated also doubtful on the spot because he did not suffer any injury, not even a scratch, despite him being on the spot. Further it was argued that on the same evidence the trial court has acquitted two co-accused, while the present accused-appellants have been convicted, which is not sustainable and in this regard he has relied upon Surjan and others Vs. State of U.P., 2018 Law Suit Allahabad 2016.
19. On the other hand, learned A.G.A. has vehemently argued that there is no infirmity in the impugned judgment because there were three eye-witnesses of the occurrence namely Phool Singh (PW-1) and Bhoore Singh as PW-2 and PW-4 Surajmukhi, wife of the informant, who have given eye-witness account of this occurrence, as they had seen the accused-appellants having assaulted the deceased, as a result of which three persons have died in this case namely, Kusuma Devi, Ganga Sri and Mahavir and the ocular testimony is corroborated by the medical report, therefore, the trial court's judgment requires to be upheld and the appeal deserves to be dismissed.
20. Now this Court has to examine as to whether trial court has correctly evaluated the evidence on record or does it require any interference, in the light of arguments made by the learned counsel for the appellants.
21. PW-1 Phool Singh, who is informant of the case, has stated in examination-in-chief that 7 ½ months ago at about 10:30 pm, he was sitting on Chabutra in front of his house and was smoking Bidi and his wife was making curd there only. Near him his daughter Kusuma Devi was sleeping on a cot. The house of Bhoore Singh is situated in front of his house and there is hardly a gap of 10 hands between his house and the house of Bhoore Singh. Bhoore Singh and his wife were also sleeping outside their house on Chabutra. The house of Bhoore Singh and Mahavir is one and the same. Mahavir, his mother Ganga Sri and sister Bhoomi Sri were also sleeping in front of their house. There was light as well which was emitting from the lantern which was burning in his chappar. In the meantime, Amrit Singh, Khurshid Khan, Nasuruddin, Bare Lal and Suresh came towards his house, they were, in all, 10 to 12 miscreants. Amrit Singh was armed with licensed gun of his father. Khurshid had gun, Nasuruddin had a gun, Bare Lal had a Pauna and Suresh had a gun. Menhdipal had also a gun and apart from them, 4-5 miscreants were having guns of country made pistols in their hand, whom he could not recognize but would recognize if they come before him. After all these miscreants had came there, Amrit Singh shouted that here was Phool Singh, let him be caught, at this PW-1 got up from the cot and fled from there and concealed himself by the side of wall of Kayam Singh and witnessed the occurrence from there and was also shouting. Amrit Singh made fire upon his daughter by his gun and when the same hit his daughter Kusuma, she got up and, thereafter, fell down. When she was lying on the ground, Menhdipal also fired upon her, by which she died. His wife started crying that her daughter was killed, thereafter, the miscreants headed towards Mahavir, who is his nephew and they (miscreants) also made fire upon Mahavir and getting hit Mahavir, fell down. His mother (Mahavir's mother) Ganga Sri was also fired upon by the miscreants, both Mahavir and Ganga Sri died on the spot. On Mahavir and his mother, fire was made by Nasuruddin, Khurshid Khan and Raj Pal while other miscreants continued to stand on Chabutra there only. The villagers namely Kayam Singh, Chob Singh, Ajab Singh, Ganga Singh, Ram Khiladi, Chandra Bhan, Suraj Singh, Ram Prakash and Komal came there rushing, armed with Lathi and reached the spot. It is further stated by him that Amrit Singh had taken off wrist watch of Mahavir and Menhdipal had taken off Pongni from the nose of Mahavir's mother. Thereafter, miscreants having seen the pressure of much crowd of the villagers, fled towards north. Mahavir and his mother, both died after they fell down on the ground and, thereafter, the miscreants had taken all these articles from their person. Further it is stated that the miscreants were harbouring animosity towards him. Amrit Singh had made fires upon police and in that case police had written name of PW-1 as a witness. PW-1 had got a patta executed in in his favour from Pradhan and in that regard Amrit singh had filed a case against him because he did not want the land to be given to him. The brother-in-law of Amrit Singh is Barelal. Menhdipal is brohter of Amrit Singh, while Raj Pal is brother-in-law of Menhdipal and have sitting with Suresh, Khurshid and Nasuruddin, day in and day out. He knew these miscreants from before and all of them were present in court room except Amrit Singh and Khursheed Khan. After fleeing of miscreants, he got a report written by Kayam Singh at his (PW-2's) house and taking the same he went to P.S. next day in the morning at about 8:30 a.m.. He further stated that he had not gone to the P.S. due to fear in the night. He had handed over the written report to Deevan Ji at P.S. Fariha which is Ext. Ka-1.
22. In cross-examination, this witness has stated that it is wrong to say that 15 to 16 months ago, he had assaulted the son of Draupa Devi namely, Kushal Pal by sickle (hansiya) regarding which a case was filed against him in the court of Magistrate in Shikohabad which was a false case. In case of 1982, in the first week, the father of accused Nasuruddin had deposed against him in the said case. It is wrong to say that he had been convicted and sentenced in that case with imprisonment of three months and fine of Rs. 3,000/- but stated that he was only told to have been fined with an amount of Rs. 3,000/-. The said fine was imposed against him about two months ago. He had not filed any appeal against the said conviction. The said case was running since prior to the present occurrence but he had no knowledge about the said case. He had received summons of the said case after the occurrence of the present case. He showed ignorance that Nasuruddin was studying in Narayan College Shikohabad and was student of B.A. final year. On the date of occurrence, he was at home during day and was not appearing in examination. It is wrong to say that 15 to 16 months ago, the father of Gaffoor namely, Munna was murdered who died of T.B.. He does not know whether Gaffoor had given any application to police regarding murder of Munna. He also does not know that Devkinandan Khanna was S.H.O. at the P.S. about 15-16 months ago. He further stated it to be wrong that he is a history sheeter and that he was in supervision of police. He did not know that his name was entered in register no. 8 at the P.S. and also stated it to be wrong that he did not have any agricultural land and further stated that he was owning about 5 to 6 bighas of agricultural land in village Barthara and three bighas of land was in the name of his father. He further stated that concerning Patta, a case was contested about two to three years ago, in which he had filed objections and in the same, his statement was recorded but he had lost the said case and that he had not filed any appeal against the said judgment despite the fact that court had set aside his patta. Further this witness has stated that he had written in his report that he was present at the Chabutra outside his house but he cannot tell as to why the same was not written. There was no chhappar on the Chabutra of Mahavir and Bhoore Singh, although in front of their house there was a chhappar and in front of his house, there was also a Chhappar. The miscreants came and shouted that here was Phool Singh and right then he fled from there.
23. This witness has stated that he had written name of Nasuruddin as one of the assailants who had made assault upon Mahavir and his mother and has also stated to the Investigating Officer that he was standing by the side of wall of Kayam Singh but he could not tell as to why the Investigating Officer did not record the same in his statement. He also stated it to be wrong that no such occurrence took place nor had he seen any such incident and that due to animosity he was taking name of Nasuruddin to be an accused in this case. Further stated that no one had made an attempt to bring improvement in the relations between Amrit Singh and Menhdipal. There was a dispute with respect to partition of house of land between Menhdipal and Mahavir and no other enmity was there between them. Amrit Singh was taking side of Menhdipal. He had not seen that in this regard father of Raj Pal had come for holding panchayat. When the miscreants stated that here was Phool Singh, let him be caught, then he was about 25-30 paces away from him. PW-1 was standing towards south of the house of Kayam Singh in the corner but the said place was about 50 to 60 paces away. Till the incident happened, he continued to stand there only raising alarm but no miscreants had made fire upon him because they could not get any opportuity to make fire nor any fire hit him. From the southern corner of his chhappar, at a distance of about 10 paces towards north, was a lantern. Dalan of Mahavir was about 10 to 15 paces away from his Chhappar. In the entire incident, hardly 10 to 15 minutes might have been consumed. He further stated that no one had disclosed to him the name of Raj Pal. When he had written report at his house, at that time those witnesses were present there, who had seen the occurrence. Raj Pal was about 10 paces away towards east from his Chhappar when he had made fire upon Ganga Sri, while PW-1 was about 5 paces away towards west from Ganga Sri, when Ganga Sri was fired upon. From there, all miscreants had fled towards north. It was wrong to say that Raj Pal was not present at the place of incident and that he was falsely named by him because he was having enmity with Menhdipal and Raj Pal, who was his relative.
24. Further this witness has stated that out of the miscreants only two were wearing Dhata (cloth covering the face). Bare Lal was wearing Dhata and his face was not visible but he could be identified from his voice, hence, his name was written. Amrit Singh had shouted that here was Phool Singh, let him be caught, nothing else was stated by the miscreants except that they were abusing. He had not written in report nor had stated so to the I.O. that Bare Lal, was identified by him by his voice. At about 6:00-6:30 am, he had written the written report at his house. Barthara was about 3 to 4 furlong away towards west from his village and Keshpura was 3-4 mile from his village towards south. Nagla Fateh was about one mile away from his village in the east. Nagla Sunav was one mile and one furlong away towards north from his village and Machariya would have been three furlong away towards east. The Chaukidar lives in Barthra, Nagla Fateh and Sunav. The said Chaukidar did not come after the occurrence. The Chaukidar of his (PW-1's) village had come at about 5:00 pm, who was sent to the P.S. to apprise that the occurrence had taken place at the house of PW-1 and that PW-1 was coming. It was wrong to say that the police personal had arrived at 6:00 a.m., in fact they had come after PW-1 had reached P.S. at about at about 8:00-8:30 a.m.. Further this witness has stated that he had accompanied the dead body from his village which were taken to P.S. and remained present there for about one hour. The dead bodies reached Firozabad after sun set, which were taken there in bullock cart. Further he has stated that I.O. had recorded his statement the same day when he had lodged the report which was recorded at about 7:00 am at the P.S. and statement of Chob Singh was also taken down at the P.S. but the statement of Chaukidar was not recorded at the P.S. Further he has stated that no person belonging to the house of Bhoore had accompanied the PW-1 to P.S. Only, Chob Singh had accompanied him to the P.S. He had no knowledge that Bare Lal had stood surety for Amrit Singh. It is also wrong to say that there was no light at the place of incident and some unknown persons had given effect to this occurrence but due to animosity he had lodged name of Bare Lal and he also stated it to be wrong that the report was got lodged in consultation with the Investigating Officer subsequently. He also stated it to be wrong that his report was sent to the P.S. by the I.O. and, thereafter, its copy was sent with the dead bodies. This witnss has further stated that Amrit Singh, Menhdipal and Hakim Singh are real brothers and their father Bhimsen is still alive. The son of Hakim Singh, namely, Mahavir was murdered and Ganga Sri was wife of Hakim Singh. Further, he has stated that there is difference in Pauna and Gun in respect of their size as Pauna is a little smaller in size when compared to gun. He had stated to the Investigating Officer that Menhdipal was having Pauna in his hand. There is no difference in Bandook and Pauna except that of size as Pauna is also treated to be gun. It was wrong to say that because of animosity with Amrit Singh, name of Menhdipal was wrongly written and it was wrong to say that he had not seen Menhdipal at the place of occurrence. He further stated that he did not have any animosity with Suresh. His sister (PW-1's) Maya Devi was married to Pradhan of Pilakhtar, namely Surendra Singh. Suresh also belongs to Pilakhtar. He does not know that there was animosity between Suresh and Surendra Singh since long. After the occurrence till the next morning, Surendra Pradhan had not come to his house and he further stated that it was wrong to say that he has falsely implicated Suresh at the instance of Surendra Pradhan.
25. It is evident from the testimony of this witness that he had animosity with the accused, the details of litigations have already been mentioned by this witness in the above quoted statements. Therefore, it could not be said that there was no motive of giving effect to this occurrence by the accused side because enmity is a double edged weapon which is established law and that because of enmity there could be false implication, as well as incident can actually be caused. In the case in hand, this witness has clearly stated that he was sitting outside his house on Chabutra when the accused came in his house, armed with weapons, which are mentioned above and accused Amrit Singh had exhorted others that here was Phool Singh, who should be caught and it was then that he had got up from the cot and ran from there and concealed himself behind the wall of Kayam Singh and from there he witnessed the incident, in which Amrit Singh had made fire upon his daughter Kusuma and when she fell down, Menhdipal again made fire upon him by which she died. Thereafter, miscreants headed towards Mahavir (his nephew) and made fire upon him and also fire was made by the miscreants upon Ganga Sri, who was mother of Mahavir, by which Mahavir and Ganga Sri died on the spot. He also has clearly stated that Mahavir and his mother were fired upon by Nasuruddin, Khurshid Khan and Raj Pal, while other miscreants remained standing on Chabutra. It has also come in evidence that accused Amrit Singh had taken off writst watch of Mahavir and accused Menhdipal had taken off the golden Pongni of mother of Mahavir after they had fallen down and had died. It has also come on record in evidence that the distance between the place where incident happened from the house of Kayam Singh, where he was standing towards south of the house, at a distance of 50 to 60 paces and witnessed the occurrence, it could not be said that the place of incident was not visible to him as there was moon light as well as light of lanterns.
26. The arguments of learned counsel for the appellants that he could not have seen the occurrence from such a distance i.e. 50 to 60 paces, does not appear to be a tenable one and it may also be mentioned here that the investigating officer has not shown the house of Kayam Singh in site plan (Ext. Ka-20), which ought to have been shown, nor any distance of the said house from the place of incident has been shown which may be treated to be lacunae left by the Investigating Officer in conducting the investigation but its benefit may not be allowed to go to the accused as per settled law.
27. We find that in site plan Ext. Ka-20 by 'O' is shown the place from where the informant is stated to have seen the occurrence concealing himself there. By 'D' is shown the place where the informant was smoking on a cot when the accused came and were seen, thereafter, he fled from there. By 'C' is shown the place where informant's wife was making curd and from this place only she had seen accused Amrit Singh and Menhdipal to have fired upon his daughter. By 'D' is shown the place where deceased Kusuma was sleeping on a cot and from where the blood stained bedding was taken by the Investigating Officer. By 'E' is shown the place where there was a Khatola (small cot) on which, Rama daughter of Phool Singh was sleeping. By 'F' is shown the place where dead body of Kusuma was lying and from there blood stained and ordinary soil were collected by the I.O. By 'X' 'X' is shown the place, where two blank cartridges of 12 bore were found which were said to have been fired upon the deceased, were taken in possession by the I.O. By 'G' is shown the place, where Bhoomi Sri was sleeping on cot and from here she had seen the accused committing murder. By 'H' is shown the place, where Mahavir was sleeping and after hearing noise, ran from there and collided with a wall towards south by which he fell, where his dead body was lying. By + (plus) is shown the place, where marks of pallets on the wall were found, which was about three feet high, where brain matter was found at some places and from the said place, blood stained and ordinary soil were taken by I.O. in possession and the marks of pallets were shown by dots. By 'I' is shown the place, where deceased Ganga Sri was sleeping on a cot and from this very cot it was stated that after hearing sounds of fire, she tried to run away and collided with wall and fell down and her dead body was lying there, which was shown by 'B' and from this place blood stained soil and ordinary soil were collected and on the wall also there were marks of pallets found shown by dots and to the left side of the dead body, three blank cartridges were found lying, which were taken in possession by the I.O. By 'J' is shown the cot where Bhoore was sleeping. By 'K' is shown the place, upon which Somwati was sleeping and from this place she had seen Kushma, Mahavir and Ganga Sri being assaulted by the bullets. By 'L' is shown the place where lantern was hung. By 'M' is shown the place where lantern was hung. By 'R' is shown the place, from where witness Bhoore had seen his mother and brother being assaulted by the accused. By 'arrow' is shown the direction from where villagers came after hearing sounds of fire and had chased the accused. Though, the distances are not shown in the site plan but it appears that the entire incident happened in an area which was totally visible from place shown by 'O' from where PW-1 is stated to have seen the occurrence and other eye-witness namely Surajmukhi is stated to have seen the occurrence by letter shown by 'C', therefore, we find that presence of PW-1 appears proved on the place of incident when this occurrence happened.
28. PW-2, Bhoore Singh, who is also an eye-witness, has stated in examination-in-chief that deceased Mahavir Singh was his real brother and deceased Ganga Sri was his mother and deceased Kusuma Devi was his cousin sister, all of whom had been murdered about seven and half months ago at about 10:30 pm, when he was lying on a cot on Chabutra in front of his house and his wife and children were also sleeping near him. His mother and Mahavir were lying there only and all of them were sleeping. He heard sounds of fire and some noise. When he opened his eyes, he saw that there were some men. He saw Kusuma getting hit by fire arm in the moon light. In front of 'Chabutra', a lantern was burning in Chhappar. He had seen Amrit Singh, Menhdipal, Nasuruddin, brother of Nasuruddin- Kishnoo, Bare Lal, Raj Pal and Suresh, in all, 10 to 11 miscreants, out of them Menhdipal with Pauna, Amrit Singh with his father's licensed guns, Raj Pal with gun, Khursheed Khan with gun, Nasuruddin with gun, Kishnoo with gun, Suresh with gun and Bare Lal with Pauna, were armed and after coming there, the miscreants murdered his mother as well as Mahavir. Nasuruddin, Kishun Lal and Raj Pal had made fire upon his mother and upon his sister Kusuma, Menhdipal had made fire. Name of father of Kushma is Phool Singh. In Phool Singh's chhappar, a lantern was burning, who is his uncle. At the time of this occurrence, Chob singh, Naththu, Ganga Singh, Kayam Singh, Suraj Singh, Chandra Bhan, Komal Singh and Ram Prakash came on the spot and after having seen these villagers, under pressure, the miscreants fled towards north. After death of Mahavir and his mother, the miscreants had taken off Mahavir's wrist watch and Pongni of his mother and fled. Bhoomi Sri is his sister, who was sleeping near her mother. Near Phool Singh, his daughter Kusuma was there and his wife was making curd. Out of the miscreants, five were present in court, while Amrit singh and Kishun Lal were absconding.
29. In cross-examination, this witness has stated that towards south of the house of Mahavir, was house of Kayam Singh and not towards south-east. The house of Kayam Sigh would be five to ten paces away from the house of Mahavir and to the East of house of Kayam Singh, is house of Komal Singh. Towards west adjoining to house of Phool Singh is the house of Kayam Singh and from the southern wall of the house of Kayam Singh, the house of Phool Singh is fully visible. At the time of incident, PW-2 was sleeping beneath the Chhappar in his Dalan, where there was a little high wall. He did not raise any alarm, as he was concealing himself there. No miscreant had made any fire upon him. The place where he was sleeping, from there, at a distance of about five hands, a lantern was hanging, which used to be lighted everyday and when the Investigating Officer visited the place of occurrence, the same was burning there only. Kayam Singh and Komal Singh after coming there, stood by the side of wall and had witnessed the incident. The place where he (PW-2) was standing, from there, Phool Singh was not visible, although he had heard voice of Phool Singh, who was shouting loudly. The place where he (PW-2) was standing, the witnesses were wholely visible. He further stated that report was not written at home in front of him, rather the same was written at the P.S.. Phool singh had read out this report in front of him. The written report was scribed by Kayam Singh in front of him and whatever was told by him, the same was written. Prior to the said report being written there was no consultation made among the family members. It was wrong to say that Raj Pal was not on the place of incident and had not seen the occurrence. It is wrong to say that prior to writing the report, no one had taken his name and because Phool Singh had got his name written, therefore, he was taking his name now. It is wrong to say that the house of Kayam Singh was situated south-east of his house at a distance of about 100 paces, from where the place of incident was not visible. Further he has stated that it was wrong to say that he had not seen any miscreant chasing the informant- Phool Singh. Further he stated that about two to three miscreants had chased Phool singh for about 10 to 15 furlong. One mile consists of eight furlong. He had stated to I.O. that Nasuruddin had also made fire. He had mentioned the name of Nasuruddin among those who had made fire upon his brother when he made statement to the I.O. but he could not tell the reason as to why the same was not written by him. After hearing sounds of fire, his brother and mother had not fled from there. His mother and brother collided with wall and soon thereafter, miscreants had fired upon them, which resulted in their death. He has not stated to the I.O. that his mother Ganga Sri and brother Mahavir had fled after hearing sounds of fire and that he could not tell as to why the same was written by the I.O. He has further stated that he had seen Kusuma being fired upon, which was made by Amrit Singh and Menhdipal and none else had fired upon her. Thereafter, the miscreants had killed his mother Ganga Sri and Mahavir chasing them. He had seen Suresh making fire. Written report was scribed in the night at about 11:00 pm. The Inspector had come at about 8:30 a.m. and at that time Phool Singh and Kayam Singh were in the village, as both of them had returned from P.S.. Kayam Singh had not gone to the P.S.. Phool Singh and Chob Singh had returned from the P.S. before 7:00 a.m.. It was wrong to say that Nasuruddin was studying in Shikohabad, as he had not seen him studying there. It was also wrong to say that during the occurrence, he was appearing in examination of B.A. and it was wrong to say that there was no light at the place of incident nor was there any lantern burning. It was wrong to say that no lantern used to be burning everyday in the Chhappar. It is wrong to say that unknown dacoits had come there who had killed the deceased and he could not recognize them and it was also wrong to say that he had not seen Nasuruddin at the place of incident. He was interrogated by the Inspector the next date in the morning.
30. Further, he has stated that during the occurrence, it was rainy season but it was not raining. The cloud used to come and go and it was wrong to say that three hours prior to the occurrence, it had rained and it was also wrong to say that in the night of occurrence, there was heavy wind. Further he stated that none of the miscreants was wearing any Dhata. The place where he had concealed himself, from there, the cot of Mahavir was maximum at a distance of five furlong. The miscreants had not made fire by placing gun upon anybody's chest. The miscreants might have fired maximum from a distance of four furlong. After fleeing away of all miscreants, he had lifted the hand of his mother and brother to know, whether they were alive or not and after having felt them, no blood stains were found on his hand and clothes. There were few drops of blood on the wall. The walls upon which, there were drops of blood, the same was to the north of his Dalan. Further he has stated that I.O. had obtained his signature on a half paper, on which he had also recorded his statement. On the next date of incident, I.O. had come to the spot in the morning, and, thereafter, he came after about three days thereafter. At that time, he had interrogated Chob Singh, Ganga Singh etc. and he had already recorded statements of Phool Singh. On the next day of occurrence, I.O. had taken in possession the blood, lanterns etc. and had obtained the signatures. The dead bodies were taken away from the village at about 10:00 a.m. with which he had also accompanied. Apart from him, Ram Khiladi, Suraj Singh, Chandrabhan, Natthu, Ganga Singh and other persons of the village had also accompanied and had reached Firozabad at about 5:00 pm. The dead bodies were taken in buffalo-cart up to P.S. In Gonch, tractor of Bramhanand was found by which dead bodies were taken up to Firozabad. Along with dead bodies inspector had also gone from the village, leaving behind few policemen. Further this witness has stated that after fleeing away of the miscreants, he had a talk with Phool Singh at about 11:00 pm. Consultation had taken place as to the names, who were to be written in report, who had been recognized, while others could not be recognized. The others, if they appear before him, could be recognized. He had stated details of other miscreants to the I.O. but he cannot tell as to why the I.O. had not written the description of other miscreants, as stated by him. He denied that written report was scribed next day in the morning. He had not given any such statement to the I.O. that in the morning, Kayam Singh had written a report and Phool Singh and Chob Singh had gone for lodging the report to the P.S. He also stated it to be wrong that he could not recognize the miscreants and that after making consultation, names of the accused were got written in the report and that Bare Lal's name was impleaded due to animosity, falsely, although he was not involved in occurrence. He has further stated that there was no animosity of his or his family members with Suresh. Till the time report was written, Suresh, Pradhan of Pilakhtar had not come. The sister of Phool Singh namely, Maya was not available in the village, rather she was in village Pilakhtar, which was about 2 Kosh away from his village. It was wrong to say that he did not know Suresh from prior. It was wrong to say that there was some dispute between Surendra Pradhan and Suresh pertaining to some land. It is wrong to say that in a case relating to the post of Pradhan, Suresh had contested Surendra. Prior to occurrence, PW-2 did not have any relation with Suresh. He (Suresh) used to go to the place of Amrit Singh and others. He had made report regarding this at the P.S. orally and not in writing. It was wrong to say that Suresh was not involved in this occurrence and it was also wrong to say that because of enmity between his Phoopha and Surendra, Suresh was falsely implicated in this case. As soon as, fire was made, he opened his eyes. Kusuma was hardly five to 10 paces away from him. Kushma was fired from a distance of about one yard. He has stated to the I.O. that Menhdipal had made fire upon Kusuma, if the same was not written he could not tell its reason. It was wrong to say that after this occurrence, he has started living in the house of Menhdipal. At present time, no one is living in the house of Menhdipal. Now police is living in PW-2's house. It is wrong to say that he has falsely mentioned name of Menhdipal in the present case and his house was usurped by him and it is also wrong to say that he was living in that house at present.
31. Dr. Vinay Kumar Yadav, Medical Officer, S.N.M. hospital, Firozabad has been examined as PW-3, who conducted post mortem of the deceased Ganga Sri wife of Hakim Singh at 1:00 pm, whose dead body was brought in sealed condition by Constable Khacher Singh and Constable Ranvir Singh in sealed condition and was identified by them. The rigor mortis had passed off from the upper portion of the body but was present in the lower portion. The following ante-mortem injuries were found on her person.
(i) Gun shot wound of entry 2 cm X 2 cm cavity deep on right temporal region. Blackening present around the wound.
(ii) Gun shot wound of exit 6 cm X 8 cm on left temporal region & left cheek. There was fracture of right and left temporal bone and left mandible.
32. In internal examination, he found that membranes of brain were ruptured. Brain was also ruptured. In stomach half digested food was present in small intestine, while in large intestines fecal matter was present. The cause of death was found to be the ante-mortem injuries and her death was one and half days old. He has proved her post-mortem report as Ext. Ka-2 in his hand writing.
33. On the same day he conducted the post-mortem of the other deceased Kushma Devi, daughter of Phool Singh, at about 1:30 pm, whose dead body was also brought by the same Constables in sealed condition and was identified by police constables. She was just 14 years old and was found to have died one and half days ago. The following ante-mortem injuries were found on her person:-
(i) Gun shot wound 8 cm x 6 cm x cavity deep on left side of skull and face. Contents of skull cavity were coming out.
(ii) Gun shot wound 4 cm x 4 cm x cavity deep on left lower part of the chest.
34. In internal examination, he had found fracture of all left lateral and frontal bone of skull and left mandible. Brain membranes were punctured. The brain was ruptured. In skull cavity 12 metallic pallets and one card-board was found. The left side of the chest wall was punctured and there was fracture on left 8th, 9th, 10th rib. The left Pleura was punctured and left lung was also punctured. In chest cavity, in the left side, four metallic pallets were found. In abdominal cavity, five metallic pallets and two card-board were found and in her abdomen, half digested food was found. In small intestines digested food was found, while in large intestines fecal matter was found. Spleen was punctured. The cause of death was found to be excessive bleeding and hemorrhage. He has proved post-mortem report of this deceased as Ext. Ka-3 in his hand writing.
35. On the same day, he also conducted post-mortem of the third deceased, Mahavir, at 1:45 am, whose dead body was brought by the same constables in sealed condition and was identified by them. He was aged about 20 years and the rigor mortis was present, both in upper and lower portion and had found following ante-mortem injuries on his person:-
(i) Gun shot wound 6 cm x 8 cm x cavity deep on top of skull and left side of scalp. Brain and its contents were coming out of the wound. Occipital, frontal and left temporal bones were fractured.
(ii) Gun shot wound 2 cm x 3 cm, on left lumber region, cavity deep.
(iii) Gun shot wound 3 cm x 3 cm x cavity deep on left lumber region 6 cm below injury no. 2.
36. In internal examination, he found that brain was ruptured. Brain membranes were punctured. In skull cavity, 12 metallic pallets and one card-board was found. Abdominal wall was punctured. Peritonium was punctured. 9 Metalic pallets equal to the size of pea and eight metalic pallets and two card boards were found in abdominal cavity. In stomach, half digested food was found. The small intestines were found punctured and the digested food was found and large intestine was found also punctured and fecal matter was present. The death had occurred due to excessive bleeding and haemorrhage and time of death was about one and half days old. He proved report of post-mortem of this deceased as Ext. Ka-4 in his hand writing.
37. He stated that all the three deceased could have died on 7.8.1982 at 10:30 pm by fire arm injuries and that if deceased Kusuma was lying on cot and had been fired upon, the kind of injuries that she has sustained, could have been received by her.
38. In cross-examination, this witness has stated that all the three deceased would have consumed food 3 to 4 hours prior to their death. The fire upon Ganga Sri would have been made from a distance of around 3 to 4 feet and fire upon Kusuma and Mahavir would have been made maximum from a distance of about 6 feets but he could not tell. All the three deceased have died on account of having received fire arm injuries which have been noted above and as fire appears to have been made from a close range, it gets corroboration from the ocular testimony of PW-1, PW-2 and PW-4.
39. Surajmukhi, wife of Phool Singh, has been examined as PW-4 and has stated in examination-in-chief that about eight months ago in the night at about 10:30 pm, she was making curd on her 'Chabootra', which was in front of his house and near her, her husband was smoking 'Bidi on a cot and also her daughter Kusuma Devi was lying there on a cot. First of all, Amrit Singh came there with whom, there were Menhdipal, Menhdipal's son-in-law Raj Pal, Bare Lal, Nasuruddin, his brother Kiruddin, Suresh, and two-three other men. Menhdipal was armed with country made pistol. Amrit Singh was with licensed gun, Bare Lal with Pauna, Raj Pal with gun, Naresh, Nasuruddin and Khursheed had Katta and Pauna. Soon after coming there, Amrit Singh exhorted, here is Phool Singh, let him be caught and should be killed, at which her husband fled towards the house of Kayam Singh. Amrit Singh made a fire upon her daughter, who after getting hit fell down on the ground and, thereafter, Menhdipal also made fire upon her and as soon as she received second fire arm injury, she died and, thereafter, the miscreants proceeded towards Mahavir. She has further stated that Kiruddin and Nasuruddin had also assaulted. First fire was made by Nasuruddin which was aimed at Mahavir. Kiruddin and Suresh also fired upon Mahavir, by which Mahavir died. Bare Lal, Raj Pal and Menhdipal also made fire upon mother of Mahavir i.e. Ganga Sri and she died as soon as she got hit. It was the moon lit light and a lantern was also burning in chhappar, in the light of which, she has identified the assailants/miscreants. Near Mahaivr and his mother, brother of Mahavir namely, Bhoore Singh (PW-2) was also present. She has stated that Suraj Singh, Chandrabhan, Ram Prakash and Kayam Singh of the village also came on the spot and, thereafter, miscreants fled towards the house of Amrit Singh. She identified Raj Pal, Bare Lal, Menhdipal and Suresh in court by placing her hand upon them and after placing her hand upon Nasuruddin she stated that all these were involved in this occurrence, whom she knew very well. She further stated that when they fled from there, these miscreants had taken away 'Pongni' from the nose of Mahavir's mother and wrist watch of Mahavir also.
40. In cross-examination, this witness has stated that the place where Mahavir and Ganga Sri were there, was to the east of her house and the accused had come from the side of house of Amrit Singh and all of them, first of all, came to her house and the miscreants assaulted her and her eight year old daughter by barrel of gun and also made fire upon her husband. Her husband had not received injury of fire arm and they (miscreants) had chased her husband for a certain distance. The Mahavir and his mother had not fled from there, rather kept concealing there only. Mahavir and his mother were killed on the ground. When the fire was being made in her house, right then, Mahavir and his mother had hardly put their feet on the ground and soon all the miscreants made fire upon them and at that time both these decesed would have been about one or two paces away from chhappar of PW-4. Further this witness has stated that from her chhappar, the cot of Mahavir would have been at the most 10 paces away and near that, was also the cot of Ganga Sri, Mahavir's mother. When she was making curd, about 45 minutes prior to that they had taken meals along with her husband and children. The Incident would have happened within 45 minutes of Mahavir and Ganga Sri having consumed food. When she was put a question as to whether when inspector came, then her husband had lodged a report, to which, she gave reply in affirmative. Further she was questioned whether any query was made from her husband before lodging the report, she started weeping. She has further stated that Raj Pal used to go to the place of Mehndipal but she does not know as to whether there had happened any quarrel between Raj Pal and her husband few days prior to this occurrence. She also stated it to be wrong that Raj Pal was not present on the spot and that she was taking his name at the instance of her husband. Further this witness has stated that she knew Nasuruddin very well from prior to the occurrence. Nasiruddin, Kiruddin and Munna are three real brothers. Munna died of T.B. and it is not that Nasuruddin were four brothers and he had taken names of only 3 out of them. Prior to the occurrence, Nasuruddin used to come to her house also. Another question was put to her that when the miscreants were firing upon Mahavir and Ganga Sri, whether their back was towards her, to which she answered in the affirmative. Another question was put whether Nasuruddin was studying in Shikohabad, to which replied that she had not heard about it and he used to live with the miscreants and she stated that it is wrong to say that Nasuruddin was not on the place of incident and was appearing in the examination in Shikohabad. This witness has further stated that she continued to stay in the village after death of Kusuma. Her statement was recorded by I.O. 15 days after the death of Kusuma. In the night when incident happened, no rain had taken place, although it was cloudy then but moon had come out of the coluds. She had stated to the I.O. that Bare Lal had made fire upon the mother of Mahavir but she could not tell as to why the same was not written by him. Further she has stated that when miscreants were making fires, at that time, Suraj Singh, Chandrabhan, Ram Khiladi, Kayam Singh and his brother Ajab Singh had come there. First fire hit Kusuma near her ear and after getting hit, she fell down on the ground by the side. After the miscreants had fled, she had felt the body of Kusuma and then she had wept. The blood stains had also come on her clothes but were not shown to the I.O. She has stated it to be wrong that on the said date she was not in the village, and that she was taking name of Bare Lal due to animosity. She also stated that when her statement was being recorded, I.O. had seen lantern which was burning in the Chhappar, when the incident had happened.
41. Further this witness has stated that Maya Devi is sister of her husband, who was married to Mualayam Singh of Pilakhtar. Mualayam Singh is still alive. He had thrown out Maya Devi, whereafter she had started living with Surendra Singh Pradhan of Pilakhtar. It is wrong to say that when Mulayam Singh had thrown out, Maya Devi, she had gone, taking along with her, her jewellery also. It is wrong to say that in recovering the said jewellery, the accused Suresh had given help to Mulayam Singh and since then Suresh had started harboring animosity towards her and her husband. Mulayam Singh had left Maya Devi about 14 years ago. She has stated it to be wrong that the animosity was going on between Surendra Singh Pradhan and accused Suresh and that Suresh was not involved in this occurrence and his name was taken only on account of animosity.
42. Further this witness has stated that country made pistol is normally small in size, about one balist and while 'Pauna' is little bigger than that which i.e. 3 to 4 balist. She had told the I.O. that Menhdipal was having 'Pauna' and her statement to that effect was correct. She had told I.O. that Mehndipal had made fire upon mother of Mahavir but why the same was not written by him, she could not tell its reason. There was animosity between her husband and Menhdipal pertaining to land. She has stated it to be wrong that the dacoity had taken place in her village and further stated it to be wrong that Kusuma, Mahavir etc. had got killed in said dacoity and due to animosity the name of Menhdipal was falsely implicated. Further stated that on the date of incident, she had seen Mahavir and Ganga Sri having food in the night.
43. PW-5 K.P. Singh, who had conducted the investigation in this case, has stated in cross-examination that at 8:00 am in the morning, he had reached the place of incident and when Kadam Singh was filling the inquest report, he was shown lantern by Phool Singh, Boomi Sri and Bhoore Singh but he could not see whether they were in running condition. These lanterns were hanging by the bamboo used in chhappar, which was shown in the site plan by him by 'L' at one place which was in chhappar of Bhoomi Sri. When he had reached there the lantern was not burning. He had recorded statements of Phool Singh at the P.S. and also that of Surajmukhi on 29.8.1982. On the date, when he recorded statement of Surajmukhi, he did not interrogate Phool Singh. Between 8.8.1982 and 29.8.1982, he visited the village where the occurrence took place many times. On 8.8.1982, Surajmukhi was crying and was not in a position to make statement. On 9.8.1982, she could not be found by him. After 12.8.1982, she was not found by him. The site plan was made by him at the instance of informant and the witnesses. He has not shown the place from where fire was made upon Ganga Sri by the miscreants. The place, where Ganga Sri had fallen, to the south of that, there were pallets mark in the wall but he has not made any reference of the height of those marks from the ground, nor the total area of the said marks but on the basis of his memory he could say that those marks were at the height of about one and half feet from the ground, while the said wall was about 3 feet high and the said marks were spread in the area of one to one and half feet. He has further stated that report was lodged in his presence at the P.S., which was got lodged by Phool Singh. Prior to lodging the report by Phool Singh, none had given information about this occurrence, neither by Chaukidar nor by any other person. He did not find Chaukidar at the place of incident. Further he has stated that if the dead bodies be transmitted to Firozabad, they would be taken by the route on which the police station is situated. He further state that it was not so that in the night the dead bodies remained at his P.S. When he reached at about 9:15 pm at the P.S., he did not find the dead bodies. Further he has stated that it was not that after reaching at the place of incident, one to two hours thereafter, he had come to the P.S. back with the dead bodies and prepared the report there and, thereafter, he dispatched the dead bodies. He further has stated it to be wrong that no witness had taken name of Raj Pal and that his name was mentioned by him in the statements only because it was mentioned in the report. He does not know that Nasuruddin was a student of B.A. part -II and was appearing in examination. He did not find anyone in village Barathra belonging to the house of Nasuruddin and had found his house in locked condition. The parents of Nasuruddin were living in rented accommodation. He had gone to their house in Fariha and had met parents of Nasuruddin but he could not meet Khursheed Khan and Nasuruddin. He had recorded statements of Nasuruddin on 20.8.1982. He did not make entry in G.D. of the witnesses, whose statements were recorded by him. Further he has stated that Bhoore Singh had not given any such statement to him that when day broke, after getting a report scribed by Kayam Singh, Phool Singh and Chob Singh went to the P.S. to lodge the report. He has further stated that Surajmukhi had not given him any such statement that Bare Lal had made fire upon mother of Mahavir. He has further stated that he had not gone to P.S. from Nagla Dan Sahay in a jeep but he could not tell as to when first Parcha reached the office of C.O., nor could he tell as to when the second and third parcha reached the office of C.O. The dead bodies were dispatched from the place of incident at about 11:45 am. He had not summoned Chaukidar of Nagla Dan Sahay. Surajmukhi has not stated to him that Menhdipal had made fire upon mother of Mahavir and he stated it to be wrong that the entire investigation was conducted on previous dates and that false recovery memo/fard was prepared by him, of the lanterns.
44. Kallu Singh, has been examined as DW-1, from the side of accused who has stated in examination-in-chief that he knows accused- Suresh, who is resident of his village and Surendra Pradhan is also of his village. His (DW-1's) marriage was performed with sister of Phool Singh namely, Maya Devi, who was resident of village Dan Sahay. Now Maya Devi stays with Surendra Singh Pradhan. Maya Devi had gone from his home of her own accord and along with her, she had taken the jewellery. She had gone to her parents' house with jewellery, whereafter DW-1 had gone with Suresh to take her back but Phool Singh did not send her nor the jewelleryy was returned to him. For return of the jewellery, Suresh had cooperated with him because of which a quarrel had happened between Phool Singh and Suresh and DW-1 had returned home. The said quarrel had happened eight to nine years ago.
45. In cross-examination, this witness has stated that the jewellery which Maya Devi had taken away, no report was lodged in that regard nor any panchayat was held. Suresh is in jail for about eight to ten months. He is his brother by the relationship of village and whenever any untoward incident happens with him, he takes suresh along with him. He has never helped Suresh because DW-1 is invalid and is not capable to give any kind of help. He had never gone to meet Suresh in jail. He had gone to the house of Phool Sigh with Suresh without telling about it to any villager. Today, he had been taken to court by brother of Suresh and had asked him to depose in court. Further he has stated that about the murder having taken place in the house of Phool singh, he had no information. It is wrong to say that Maya Devi had not taken away any jewellery and that he had not gone with Suresh.
46. DW-2, Dr. Sri R.S. Pal, Professor of Mathematics, Narayan Degree college, Shikohabad, Mainpuri, has been examined as PW-1 from the defence side, who has stated that he was principal in the said college in 1982. The accused Nasuruddin, who is present in court was student in his college of B.A. Part-II. In 1981-82, he was studying in BA-II and examinations were held in July-August, 1982. After having seen the admit card of accused Nasuruddin, he stated that the same was issued by the college and upon it there was signature of Suresh Chandra Dubey of Arts Department with which, he was conversant as he had seen him writing, the same was marked as Ext. Kha-1. After having seen the admit card of Nasruddin, he stated that the said admit card was issued from Agra University, which is Ext. Kha-2. After having perused the scheme of examination dated 7.6.1982, he stated that the same was issued by Agra University, which is Ext. Kha-3. Further he stated after having seen application of Gaphoor Kha dated 20.7.1982 that the said application was given by father of the deceased and he had issued a certificate thereon under his signature and the same was in hand writing of his clerk and the same is marked as Ext. Kha-4. Further he stated that he does not know that accused Nasuruddin was NCC cadet. Nasuruddin had appeared in examination of B.A. part -II, which were held on 6.8.1982. He was arrested from his college.
47. In cross-examination this witness has stated that in Session 1981-82, about 1750 students were in his college but he does not know each student personally. The examination of BA-II had begun on 3.7.1982. The Session of teaching of 1981-82 had continued by the University up to 15th May, 1982. He cannot tell as to till when the studies were continued in that session in his college. Prior to the examination, the students are given preparation leave but he could not tell whether dring preparations leave, where the accused Nasuruddin lived. He had seen the accused Nasuruddin last time in session 1981-82 on 6.8.1982 and, thereafter, he never met him. He has stated it to be wrong that he did not know Nasuruddin prior to him being Challaned by police. The court also put a question to which, he responded by saying that in B.A. part-II he did not have mathematics as a subject.
48. The prosecution case is that the occurrence took place on 7.8.1982 at about 10:30 pm in the night in village Nagla Dan Sahay under the jurisdiction of P.S., Fariha, District Mainpuri. When seven persons named in the F.I.R. namely Amrit Singh, Menhdipal, Raj Pal and Bare Lal, Suresh Yadav, Nasuruddin, Khursheed Khan and 4-5 other miscreants came there towards the house of informant- Phool Singh (PW-1), when he was sitting out of his house on Chabutara and was smoking and the miscreants, who were fully armed with fire arm weapons which included gun, country made pistols, 'Pauna', (small gun) and at that time deceased-Kushma was sleeping, which is shown in the site plan by 'D' and very near that spot, is shown the location of the informant and his wife by 'B' and 'C', where informant was smoking and his wife (PW-4) was making curd. Soon after reaching there, the accused Amrit Singh had exhorted that here was Phool Singh (PW-1), let him be killed and then PW-1 fled from there towards the house of Kayam Singh and from there he witnessed that his daughter Kushma was fired upon by Amrit Singh and his brother (Amrit Singh's) Mehndipal and Bare Lal, Suresh made fires upon Mahavir and his mother Ganga Sri, who tried to flee from there but they died by fire arm injuries, near the wall, which has been shown in the site plan by 'a' and 'b'. This occurrence has been witnessed by PW-1, PW-2 and PW-4, in moon light, as well as in the light of lanterns, which were burning there and which have been taken into possession by the Investigating Officer also. Therefore, we find that there was sufficient light in which the accused could have been identified by the witnesses, PW-1, PW-2 and PW-4 who were of the same area and these miscreants were well known to the informants side, hence, it cannot be said that there could be any difficulty in their identification.
49. Dr. Vinay Kumar Yadav (PW-3) has found two gun shot injuries upon the dead body of Kusuma, one on her skull and the other on her chest, the said statements of the doctor is found corroborated by the ocular testimony of PW-1, PW-2 and PW-4, because it has come in evidence that after getting first injury, she fell down and, thereafter, the another shot was made upon her which ultimately resulted in her death. Similarly, the other two deceased namely, Ganga Sri and Mahavir are found to have received 2-3 injuries respectively, of fire arm by the said doctor and the injuries upon Ganga Sri is found of fire arm i.e. entry wound in temporal region having blackening and the other also in the same area, which is exit wound, therefore, her death appears to have resulted on account of single gun shot wound made in temporal region from a very close range because of blackening having been found. The third deceased- Mahavir is found to have suffered injury no. 1 at the top of skull. Injury no. 2 in lumber region and injury no. 3 also in lumber region, which would show that he had received three injuries of fire arm and number of pallets were found embedded in the body of these two deceased persons. The statements which have been cited above of PW-1, PW-2 and PW-4, clearly show that these injuries were stated to have been caused by accused Nasuruddin, Khursheed Khan and Raj Pal by which both these deceased had died. Therefore, we find that the ocular testimony is fully corroborated by medical reports and it is apparent that all the miscreants named above had come there forming an unlawful assembly armed with deadly weapons and succeeded in killing all the three deceased named above, in prosecution of common object of the said unlawful assembly.
50. The arguments made by the learned counsel for the appellants that according to F.I.R. itself PW-1 had fled from the place of incident soon after arrival of the miscreants there and had concealed himself behind the wall of Kayam Singh and from there he has stated to have seen the occurrence which is unbelievable because it was not possible for him to have witnessed the occurrence from the said place nor the Investigating Officer has shown the house of Kayam Singh in the site plan.
51. We are not inclined to accept this argument because in the site plan it has clearly been shown that from place 'O', PW-1 is shown to have witnessed the occurrence and whatever places have been demarcated in the site plan, where these deceased had been fired upon, were clearly visible. Merely because the house of Kusuma had not been indicated by mentioning his name, would not mean that PW-1 could not have seen the occurrence from the said place where he has stated himself to be present and had concealed himself in order to save his life.
52. The other argument that other injured i.e. wife of PW-1 Surajmujhi (PW-4) could not be treated to be an eye-witness because had she been there, she certainly would have suffered some injuries when so many miscreants were assaulting the deceased.
53. We are not inclined to accept this argument because it cannot be visualise as to in what manner the said witness would have saved her life by concealing herself. The occurrence is said to have taken place in the night hours at about 10:30 pm, which was a time when normally people would sleep and therefore, the presence of PW-1, PW-2 and PW-4 on the place of incident cannot be disbelieved as they were lying there after having taken food, when this occurrence has happened.
54. It is further argued by the learned counsel for the appellant that no recovery of any fire arm has been made from the accused-appellants but that could not be taken to be any ground for acquittal because even if weapons of assault has not been found by Investigating Officer, that, at the most would be treated to be ineffeciency on the part of the police or a lacuna left by the prosecution, the benefit of which would not be allowed to go to the accused side in face of the fact that three murders have been committed in very brutal manner, which have been witnessed by three eye-witnesses.
55. Next argument which was made by the learned counsel for the appellant that the two co-accused namely, Bare Lal and Nasuruddin have been acquitted by the trial court on the same evidence, while the remaining three, who are appellants before us, have been convicted which is a discriminatory approach and in fact when other two were not found guilty, the present appellants also ought not to have been found guilty by the trial court and should have been acquitted.
56. In this regard, we have gone through the judgment of the trial court and we find that it is recorded by it that Bare Lal happened to be brother-in-law of Amrit Singh and it was argued before the trial court that he had been falsely nominated in this case on account of his relationship with Amrit Singh. The complainant had stated in cross-examination that Bare Lal was wearing Dhata on his face and, therefore, could not be seen. According to him, he had recognized Bare Lal from his voice and, accordingly, was nominated in the F.I.R., however, his evidence did not suggest that Bare Lal had uttered any word during entire occurrence. The complainant had stated that Amrit Singh had asked his companions to catch the complainant and nothing else was uttered by the miscreants, therefore, in these circumstances involvement of Bare Lal in the crime was found not fully established by the trial court and benefit of doubt was granted to him and accordingly was acquitted.
57. We find that this accused was also closely known to the complainant side, therefore, there was no possibility of his identification not being made by the complainant and other witnesses but the view taken by the trial court that he could not be identified because of 'Dhata' and only on the basis of his voice, he was stated to have been recognized as he had uttered that catch hold of complainant and by these words alone the identity of the said accused could not have been established, we are of the view that the said opinion of the trial court does not appear to be reasonable but this Court cannot do anything in this regard as no criminal appeal has been preferred from the side of prosecution against his acquittal.
58. The other accused Nasuruddin has also been acquitted by the trial court with regard to whom, it is recorded in the judgment that it was argued that he was a student of B.A., who had been falsely implicated because his father had appeared as a witness against the complainant and that the occurrence related to 7.8.1982. The complainant had admitted that in the first week of August, 1982 the father of Nasuruddin had deposed against him in a criminal case, which has ended in his conviction. Thus, the complainant could have a motive in falsely implicating him. Moreover, it had also come in evidence of the accused that at the relevant time, he was a student of B.A. and his examination was in progress. Sri R.S. Pal (DW-2) was Officiating Principal of Narayan Degree College, Shikohabad, who has stated that examination of B.A.-II were held in the month of August 1982 and that Nasuruddin was appearing in that examination. He had also stated that Nasuruddin had appeared in the examination held on 6.8.1982 and his statement shows that examinations were not over and Nasuruddin was to appear even then thereafter. Exhibit Kha-4 was the certificate, which was issued by him indicating that the practical examination in respect of geography was to be held on 21.9.1982. Ext. Kha-3 was scheme of examination, which showed that examination continued even after 6.8.1982. In these circumstances, the trial court held these circumstances sufficient to create doubt that Nasuruddin would have participated in the crime during the days of his examination and on that basis, he was also given benefit of doubt.
59. We are not inclined to accept this logic given by the trail court that because Nasuruddin had appeared in the examination on 6.8.1982 and his remaining examination were yet to be over, therefore, he could not have participated in the present crime in question because this occurrence is stated to have happened on 7.8.1982 at 10:30 pm in the night, while examination was over by 6.8.1982 and no such details have been mentioned by the trial court as to what was distance of the place of occurrence from the place where he was to appear in examination and whether it was possible for him to come to the place of incident and go back again to appear in examination or not. Unless these facts were also taken into consideration, an opinion would have been expressed that it was not possible by this accused to come back after committing crime and appear in the examination, no such benefit ought to have been given on the plea of alibi, but we are helpless in this regard because no such appeal has been preferred against the acquittal of this accused. It may be clarified here that if there are more than one accused involved in a crime and if other co-accused is acquitted on false grounds, it would not be a circumstance in which the other accused would also be allowed to claim parity and acquittal, if the circumstances and the evidence on record reveals that actually both the accused had given effect to this occurrence.
60. We further find too many discrepancies in the statements of eye-witnesses and the Investigating Officer for example the complainant had stated before I.O. that Menhdipal was having 'Pauna' but in his examination on oath before court, he stated that he was having a gun, which no doubt was a discrepancy but 'Pauna' is a short gun and, therefore, in such circumstances when so many accused had come and made assault upon the deceased, this discrepancy would not be held to be a material one.
61. It was argued that Raj Pal was brother-in-law of Menhdipal and that he had been falsely implicated in this case because of that relationship.
62. We are not inclined to accept the same that he would have been nominated simply because he was brother-in-law of Menhdipal. All the eye-witnesses of the occurrence have named him as an accused. It has also come in the statement of Bhoore Singh (PW-2) that consultation was made before the scribing of the report and in this regard it was argued that the F.I.R. looses its significance and the same was got written after consultation but we do not find any force in this argument also because Bhoore Lal had clarified that the conversation had taken place only with respect to the fact that, who were the accused who had been identified by them so that they could be named in the F.I.R. and we find that in the F.I.R. names have been written of all those accused, who were actually identified by the complainant side while those accused, who could not be identified, were referred as four to five unknown persons, therefore, such kind of consultation or conversation would not demolish the prosecution case.
63. Further we would like to deal in detail with respect to the statement of PW-1 in the light of objections raised by the accused side that it was not possible for PW-1 to witness the occurrence. In this regard PW-1/informant has stated that he had witnessed the occurrence from near the wall of Kayam Singh, which was situated at a distance of about 50 to 60 paces from his house and, therefore, according to accused side it was not possible for this witness to have identified Raj Pal from such a distance. We have found it on record that informant had rushed to the wall of Kayam Singh after the miscreants arrived near his house, when Amrit Singh had exhorted his companions to catch hold of the informant, so that he may be shot dead and, thereafter, the miscreants started firing upon his daughter Kusuma Devi, therefore, we are of the view that from 50 to 60 paces distance, it could not be very difficult for the PW-1 to have witnessed the occurrence. It was very natural for this witness to run away from the spot to save his life and to actually witness the occurrence and to make hue and cry so that other villagers could also assemble to scare away the deceased. Had he stayed there and resisted the accused, he would also have been eliminated. We must also keep in mind the rustic background of the witness so as to ignore the discrepancies with respect to distance stated by him from where they state to have seen the occurrence, as they may have little idea about 'furlong' and 'paces' etc.
64. With respect to accused Suresh, it has come on record that he was resident of village Pilakhtar and that informant's sister Maya Devi was married to one Mulayam Singh of the said village, who subsequently stayed with Surendra Pradhan without getting married ('baith gayi'). It was because of this reason, that strained relations were stated to be there between Surendra Pradhan and accused Suresh and this led to nominating Suresh also as one of the accused in the present case but we find that no evidence has come on record that the relations between Surendra Pradhan and the Suresh were strenuous. It was also suggested from the accused side that the complainant's sister Maya Devi had deserted her previous husband along with ornaments and thereupon Mulayam Singh, previous husband of teh Maya Devi was assisted by accused Suresh in return of those ornaments and since then, thereafter, animosity developed between the two sides, because of which Suresh was falsely implicated in the present case.
65. We do not find this to be ground serious enough for animosity so that a false implication would be made of this accused and in view of the strong evidence having come on record that this accused was also involved in causing this occurrence, as is evident from the eye-witnesses' account mentioned above, his involvement is found to be there.
66. Thus we come to the conclusion that the trial court does not appear to have committed any error as far as holding these three appellants guilty is concerned, although we have already noted above that other two co-accused, who have been acquitted by the trial court, there being no such State appeal having been preferred against the acquittal, nothing could be done at our end but the present appeals deserve to be dismissed and is, accordingly, dismissed.
67. The accused are on bail, hence their bail bonds and personal bonds are discharged. Accused shall be taken into custody to serve out the remaining sentence.
68. Let a copy of this judgment be transmitted to the trial court expeditiously along with lower court record with a direction that the trial court shall ensure that the accused-appellants served out the remaining sentence.
69. Both the appeals stand dismissed.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Order Date 22.5.2019
A.P. Pandey